IN THE CASE OF:	Mr. 

      BOARD DATE:  	24 January 2014

      CASE NUMBER:  	AR20130009933
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, he feels he was not properly taken care upon returning from Iraq.  He suffered from lack of sleep and loss of appetite as a result of wartime conflict.  He was not provided the proper channels to control his issues.  He never had the time to make appointments to deal with his problems.  He made a stupid mistake one time to try to alleviate the problems by smoking marijuana, which caused his discharge from the job he loved so much and it has followed him everywhere.  He cannot obtain a good paying job, only odd jobs at the minimum wage, and trying to take care of his family, which is just not working.  He has struggled with finding a job for the last five years, mainly due to the narrative reason for his discharge.  He was an outstanding Soldier and loved being part of our nation’s military.  He has never smoked marijuana since.  He has dealt with his issues with the help of his family.  He went back to school and completed the diesel equipment course at a local college.  He had plenty of time to think of the stupid mistake he made.  He also requests a change to the RE-code in hopes to be able to provide for his family again and would love another change to be a Soldier again.  
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	15 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	5 September 2007
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Drug Abuse), AR 635-200, Paragraph 
			14-12c(2), JKK, RE-4
	e.	Unit of assignment:	B Co, 402nd BSB, 5th Bde, 2nd Infantry Division 
			(SBCT), Fort Lewis, WA
	f.	Current Enlistment Date/Term:	2 October 2006, 5 years
	g.	Current Enlistment Service:	11 months, 4 days
	h.	Total Service:	2 years, 11 months, 22 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (040914-061001) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	63B10, Wheeled Vehicle Mechanic
	m.	GT Score:	100
	n.	Education:	GED
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Iraq (051101-061030)
	q.	Decorations/Awards:	NDSM; ICM; GWOTSM; ASR; OSR-2
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 14 September 2004, and reenlisted on 2 October 2006, for a period of 5 years.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He served in Germany and Iraq.  His record documents no acts of valor or significant achievement.  He completed 2 years, 11 months, and 22 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 6 August 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense) for testing positive for THC (070410).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 6 August 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 8 August 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 5 September 2007, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, for misconduct (drug abuse), a Separation Program Designator code (SPD) of JKK and an RE code of 4. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record:  IO, Inspection Other, 10 April 2007, THC.

2.  Article 15, dated 30 May 2007, for wrongfully using marijuana (070310-070410).  The punishment consisted of reduction to the grade of E-1, forfeiture of $650 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 


3.  Three negative counseling statements, dated between 3 May 2007 and 19 June 2007, for having a positive urinalysis and failing to be at his appointed place of duty at the prescribed time.

4.  An MP Report Interview Worksheet with its associated documents, dated 1 May 2007, indicates the applicant was the subject of an investigation for wrongful use and possession of a controlled substance, Article 112a, UCMJ. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided congressional correspondence relating to his case, dated 14 May 2013.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he returned to school and completed the diesel equipment course at a local college, and has dealt with his issues with the help of his family. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his discharge.  

2.  The record confirms the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by an Article 15 action for violation of the Uniform Code of Military Justice and negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant requests an upgrade of his characterization to honorable and contends he regrets his actions and has learned from his past mistakes.  However, by regulation, a general, under honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge.  However, his misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.

5.  The applicant contends the incident that caused his discharge was the only one in his entire Army career and he was an outstanding Soldier.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  In addition, the applicant’s service accomplishment being an outstanding Soldier and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incident of misconduct or by the negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

6.  The applicant also contends that since leaving the Army, he has returned to school at a local college and completed a course.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that the accomplishment did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

7.  The applicant contends the narrative reason for the discharge should be changed for better job opportunities and to reenlist.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "misconduct (drug abuse)," and the separation code is "JKK."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

8.  Regarding the applicant’s desire to rejoin the military service, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

9.  Furthermore, the applicant contends that medical issues contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

10.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

11.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  24 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA



















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20130009933

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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